Kerasovitis v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-03680

DIMITRIOUS KERASOVITIS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2022
DATE OF JUDGMENT:	27 April 2022
CASE MAY BE CITED AS:	Kerasovitis v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 528

REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION

Catchwords: Serious injury application – impairment to the right upper limb – aggravation – pain and suffering only – range – causation

Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to bring proceedings for damages for pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis	Zaparas Lawyers
For the Defendant	Mr T Storey	Russell Kennedy

HER HONOUR:

1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with ISS Facility Services (“the employer”) in or about January 2017 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”

4The body function relied upon in this application is the dominant right upper limb.[1]
[1]Transcript (“T”) 1
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3](2010) 31 VR 1
12The plaintiff relied upon three affidavits and he was cross-examined. The defendant relied on affidavits sworn by Peter Wood (insurer) on 5 November 2021 and Vanessa Annette Bills (employer) on 24 November 2021 and 22 March 2022. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13From the defendant’s perspective, causation was the primary issue – there was an incident, but it happened at home as the Austin Hospital reported, not at work. Range was also in issue, as any incident aggravated extensively pre-existing right shoulder problems going back to 2002.[4]
[4]T6 – Mr Chehata’s opinion
14While it was conceded there had been confusion about the date of injury, the plaintiff’s case was that he was injured in an incident at work in January 2017.[5] Although he had some issues with his right upper limb pre incident, he suffered a significant rotator cuff tear in the incident. The consequences of the resulting right upper limb impairment are serious, in particular, the plaintiff’s inability to return to work.
[5]T60

Credit
15While counsel for the defendant suggested to the plaintiff that he failed to tell examiners of the full extent of his pre-incident right arm issues for fear it would hurt his case,[6] the plaintiff strongly rejected this suggestion.
[6]T36
16Further, it was submitted the description of the incident contained in the Austin Hospital note was accurate and reflected what the plaintiff told the Hospital at that time.[7]
[7]T51
17It was submitted on the plaintiff’s behalf that he was an honest and credible witness albeit, by his own concession, he does not remember dates and probably, understandably, does not remember the date the specific incident occurred and what occurred thereafter – “not because he is being deliberately deceitful or anything, but just with the effluxion of time and because of his own age he has just forgotten”.[8]
[8]T62
18In my view, the plaintiff was a truthful witness who tried to do his best, despite language difficulties, albeit with the help of an interpreter, and his advanced age, to give an accurate account of the incident injury and the consequences thereof. I accept he gave limited details of his pre-incident treatment because any right arm problem he had at that earlier time did not stop him working as he explained.
19Mr Moaveni thought the plaintiff was a clear and straightforward historian, who was co-operative with the physical examination.

The Plaintiff’s evidence
20The plaintiff is presently seventy-eight, having been born in March 1944 in Greece. He completed primary school only, and then worked as a shepherd and farmer. He did one year of military service and then migrated to Australia in 1968.
21Thereafter, he worked in a factory in Thornbury doing process work, and later, opened a fish and chip shop, which he operated for six years. After the shop was closed, he worked in the hospitality industry, at Lambs in Carlton and for twelve years at Zorbas in Richmond.
22The plaintiff commenced work with the employer on 4 February 2013.
23Prior thereto, he had a quadruple bypass in March 2018, a brain tumour which required surgery in 1999 and an inguinal hernia more than twenty years ago, as well as being affected by asthma.
24In 2015, he had symptoms in his right elbow and shoulder in the course of his work with the employer. He did not believe he had any time off, but if he did, it was minimal. He consulted his general practitioner (“GP”), Dr Haralambakis, at Fairfield Family Health Care (“Fairfield”), and had right shoulder and right elbow x‑rays.
25The plaintiff was given some pain medication and after a period of time, his symptoms settled down and he was able to work without any ongoing problem. Occasionally, he had some episodic niggles in either his right shoulder or elbow, but it was always transient.[9]
[9]        Plaintiff’s first affidavit sworn on 22 April 2021
26In 2015, when he had an injection,[10] his problems were just tiredness and exhaustion from work. He never denied that he did not have any problems. He just continued to work – “so that means [he] does not have anything serious”.[11]   “How could he have serious problems at work?”[12]
[10]Depo Medrol injection to right shoulder
[11]T33
[12]T34
27The plaintiff accepted whatever his treaters’ notes recorded.[13] He could not remember Professor Buchanan giving him injections in his right shoulder in mid-2003.[14]
[13]T34 and T35
[14]T35
28He denied he did not tell examiners about pre-incident treatment to his right upper limbs because he thought it might harm his case – “I’ve done nothing intentionally … I have done nothing sly in this situation I told them exactly as I’ve felt.[15] The last few years I do not remember very well. I’m not doing it purposely. I’m nearly 80 years old.”[16]
[15]T36
[16]T37
29It was correct, as Dr Lange might have recorded, the plaintiff had no past history of elbow or right shoulder problems. It was truthful, because he did not have problems. He might have had something that came and went as workers do. While the records showed problems were recorded back to 2002 – “I was working. I couldn’t have serious problems if I was working.”[17]
[17]T37
30The plaintiff worked with the employer 2.5 hours a day, five days a week, performing general cleaning duties and emptying bins at the BOC gas site in Preston.
31On or about 21 January 2017 (“the said date”), he was emptying out the wheelie bin, next to which there were a number of bags. When he got to the skip, his supervisor/leading hand, Dennis, told him to put the bags – weighing 15-30 kilograms each – in the skip. The side of the skip was about 1.5 metres high and in order to throw the bags in there he had to use considerable force.
32After having thrown about ten bags into the skip, he suddenly felt pain in his right shoulder and this in turn caused him to strike his right elbow/arm onto the edge of the skip (“the incident”).
33On the day of the injury, he reported the injury to Dennis, but as the plaintiff was already finished for the day, he went home. He believed Dennis would be able to verify the date he was injured and reported the injury. Dennis finished throwing the bags in the bin for him.[18] Dennis was a foreman, not a supervisor, not for the employer but, rather, BOC. The plaintiff recalled Dennis was wearing a BOC uniform.[19]
[18]        Second affidavit sworn 8 March 2022
[19]        Third affidavit sworn 23 March 2022
34Over the next few days after the incident, the right shoulder and arm pain did not improve, and the plaintiff consulted his GP, Dr Haralambakis, at Fairfield. He was sent for an x-ray and ultrasound of his right shoulder and was given a week off work.[20]
[20]        Plaintiff’s first affidavit sworn 22 April 2021
35However, Dr Vaiopoulos was in fact the first GP whom the plaintiff saw after the incident.[21] He saw Dr Vaiopoulos because his normal clinic was closed.[22]
[21]T7
[22]T18
36The plaintiff had an ultrasound of the right shoulder on 21 April 2017. His doctor told him that the scan showed he had damage to the rotator cuff and there was a tear, and he recommended the plaintiff have an injection to see if that would help.
37While the plaintiff was confused as to which doctor organised the x-ray and the ultrasound, he confirmed he initially saw Dr Vaiopoulos.[23] He saw him because he was in pain.[24]
[23]T19
[24]T48
38“Maybe” the plaintiff had a problem with his skin when he earlier saw Dr Haralambakis on 1 February 2017.[25] He agreed he next saw Dr Haralambakis in April 2017.[26] He did tell him about the incident. The doctor made a mistake not mentioning it in his note of 19 April.[27] The plaintiff had gone to see the doctors for his injury.[28]
[25]T28
[26]T23
[27]T24
[28]T25
39After having some time off work, the pain continued, and the plaintiff returned to Dr Haralambakis. He tried to persevere as much as he could, and went back to work, as he did not want to stop working, but after two days had to stop.[29]
[29]        Plaintiff’s first affidavit dated 22 April 2021
40The plaintiff could not remember when he stopped work after the incident. He may have worked for another week and then could not work anymore.[30] After the injury, he was trying his hardest to stay at work. His work was close by.[31] He did not think he would stop work at that time because he did not think it was serious. He tried. He went back to work to try. He never even thought of stopping.[32]
[30]T48
[31]T30
[32]T48
41The plaintiff had a cortisone injection into his right shoulder on 5 July 2017, but it did not help with the pain, so he went back to Dr Haralambakis, who organised an MRI scan of his shoulder, which he had on 3 July 2017. He was told this scan confirmed there was not only damage to the shoulder, but also to the biceps tendon.
42Dr Haralambakis referred the plaintiff to Mr Pullen, orthopaedic surgeon, who advised he could proceed with a subacromial injection to the right rotator cuff to see if this would help with the pain, or otherwise proceed with surgery.
43The plaintiff initially wanted to pursue conservative treatment because Mr Pullen advised he could not guarantee a successful outcome, so he was referred to Fairfield Physiotherapy in September 2017.
44However, the pain persisted despite physiotherapy and pain medication, and he was not able to work. When the plaintiff returned to Fairfield, he was seen by Dr Sevdalis, who arranged x-rays and ultrasounds of both shoulders, as well as a cervical MRI scan, which was undertaken in December 2018. The plaintiff was told that MRI scan showed he had a disc protrusion at C4‑5, compressing the spinal nerve.
45The plaintiff’s doctor told him to continue with conservative treatment and he believed he had one further injection into his shoulder. As his symptoms were not improving, he was referred for chiropractic treatment, which commenced in May 2019, with Dr Pantazopoulos.
46As the pain persisted, the plaintiff’s doctor told him the only other option was to look at surgery for the right shoulder, but because of his heart and age, he was discouraged from pursuing this.
47As at April 2021,[33] the plaintiff experienced ongoing right shoulder pain, and movement was restricted. Shoulder pain radiated into his neck. He had difficulty elevating his arm above shoulder height without experiencing a pulling sensation and pain.
[33]        Plaintiff’s first affidavit
48He is right handed, so all aspects of daily activity had been affected by his shoulder injury. It felt weaker than the left, but he continued to experience numbness and tingling into the right arm and a feeling like the right arm was foreign to his body. The right shoulder pain radiated into his neck, restricting his ability to fully rotate his neck.
49The plaintiff was woken up by the pain in his right shoulder when he rolled onto it.
50He tried to walk, but when he walked, his shoulder movement caused his shoulder to ache.
51He experienced daily pain, varying in intensity from day to day. Most days, the pain was manageable, but at least once or twice a week, he could experience severe pain. He then used Panadeine Forte, otherwise he tried only to use Panadol Osteo and Voltaren cream, as he did not like the effects of Panadeine Forte. He believed his asthma flared up as a result of taking medication.
52He continued to consult his chiropractor twice a month. Otherwise, he saw his GP on an ‘as needs’ basis.
53The plaintiff did what he could around the house, but was not able to do the garden or help his wife the way he used to. He had no intention of stopping work when he did. He loved to work, and his work was close to home and the hours were manageable, and it kept him occupied in retirement.
54In his further affidavit sworn in March 2022, the plaintiff addressed a number of issues, having been shown records from the Austin Hospital and his GP, Dr Vaiopoulos
55Until he had seen the Austin Hospital record of 21 January 2017 (“the Austin note”), he did not remember going there for his right shoulder and right arm pain after the injury. The note refreshed his memory of attending the hospital on his own.
56Also having reviewed the Austin note, he believed he was mistaken as to the date of injury. 21 January 2017 was a Saturday, and he did not work Saturdays. He believed the injury happened on either a Tuesday or Wednesday, but he could not be sure of the date.[34]
[34]T28
57The Austin note had to be read and interpreted to him. He understood it stated the injury occurred on a Tuesday or Wednesday night, when he was lifting some boxes at home over his shoulder, and he had pain in his right bicep. It then went on to say his son had to put the boxes away. This was not correct.[35]
[35]        T30
58The plaintiff never injured his shoulder at home lifting boxes. He believed he was misunderstood at the Austin, as Greek is his first language. He was ashamed to say that his English was not very good. Basically, he learnt his English while working at the fish and chip shop, Zorba’s and Lambs.[36]
[36]        T31
59The incident referred to in the Austin note is the incident described in his affidavit. Having reviewed the Austin note, he believed this was his first attendance for medical treatment for his right arm and shoulder.
60He now recalled attending hospital where he was told to rest and given medication. He was also told to see his GP if his condition did not improve. He consulted Dr Vaiopoulos from High Street Medical Clinic (“High Street”) on 25 January 2017 with right ongoing shoulder pain, as the records confirmed. He continued to attend doctors at that clinic.
61The plaintiff had difficulty explaining why, at the time he completed his first affidavit, he thought the incident occurred on 21 January 2017.[37] He then said it was not until he saw the Austin note that he could work out the date of injury.[38] His description of the incident circumstances in the affidavit is correct. Before the incident, he was working properly. He had no problems.[39] He confirmed he reported the injury to Dennis who worked for BOC and then went home.[40]
[37]T13
[38]T13
[39]T15
[40]T16
62At the Austin, he was alone with the doctor and told the doctor what had happened. The description in the note is a mistake. He had his accident at work, and his son did not come to work. It was impossible that he would say something like that. He had the accident at work – “ Why would I say that it happened at home? And there’s a witness at work anyway, his name’s Dennis.”[41]
[41]T30
63The Austin note was wrong, saying he was lifting boxes at home because what kind of boxes would he have at home that needed lifting? His house is not a warehouse. He does not have any boxes at all at home.[42]
[42]T32
64The plaintiff told Dennis about the injury. He did not tell his employer face to face. He told the employer on the phone. It would have been Tom, who was Greek. If he ever had to speak to any of the bosses, he would ring Tom because Tom spoke his language.[43] He must have rung Tom because there was no other way for him to communicate. He had not met “Gerald”, who was said to have been involved in a report of the incident. He must have complained to Tom fairly soon after the injury, because he would have needed to organise another worker. “Absolutely” the incident must have been some time in January.[44]

[43]T39
[44]T40
65It was wrong that he first told the employer of the incident injury on 1 May 2017.[45] The plaintiff could not remember telling Tom the incident occurred on 19 April 2017. He rang Tom, but Dennis would have done anything that was required because they would need another worker.[46]
[45]T40
[46]T41
66There was no way the plaintiff told Dr Haralambakis the injury occurred on 24 January 2017, but on 21 January 2017 he went to the doctor – at the Austin Hospital.[47]
[47]T42
67When he attended the Austin Hospital, he did not have an interpreter and “tried on [his] own”.[48]
[48]        T47
Current situation
68His situation remains essentially the same as deposed to in April 2021.
69His right arm and shoulder feels weaker compared to what it was pre-injury and even weaker than his left. Numbness and tingling in the right arm continue, and he experiences a feeling like his right arm is dead.
70The pain from his right shoulder continues to radiate into his neck, restricting his ability to rotate fully. He is frequently woken by pain at night if he rolls onto his right side, and generally avoids doing so.
71The pain varies in intensity from day to day, and he experiences severe pain at least twice a week, for which he takes medication. He tries not to take anything stronger, so restricts himself to Panadol Osteo and cream. He takes Panadeine Forte when the pain is severe. He also takes a painkiller, “Extra Protein” [scil Prodeinextra].[49] He denied that there are days when he does not take any painkillers.[50]
[49]T9
[50]T43
72It is wrong to say that his pain in his shoulder and elbow is at quite a low level most of the time:
“It could be low for a few hours, a couple of hours, and then it will get so sore, so intense that it drives me crazy - the pain drives me crazy, and the reason that it’s low is because of the pills I take. Every morning when I get up, I’ll take the Panadol Osteo, I take whatever else I need to take so that I’m not in pain.”[51]
[51]T42, T43
73The pain drives him crazy two to three times a week. He takes tablets and uses Voltaren cream.[52] The pain is always there; however, it could be because he takes medication tablets, the pain is low and at other times it is very strong.[53]
[52]T45
[53]T49
74He remains under the care of doctors at Fairfield and continues to see his chiropractor there, but ceased treatment during COVID.
75The plaintiff is restricted in what he can do around the house. Pre-injury, he was active in the garden and able to assist with general household chores. He was capable of doing minor repairs around the house. He is no longer able to do these activities in the same way, or at all, due to pain and restriction.
76Pre-incident, in spring he would dig the garden and get ready to plant all the vegetables. In autumn, he would have to get all the leaves and put them in bags and get rid of them. He did everything a garden needed all the time. He did it all. Now, his son does it.[54]
[54]T46
77In the morning, when he was working, he would get up, go to work, come home, have a coffee, go out in the garden, but he cannot do that now. He can just water the garden. He cannot dig. When he needed to have the vegetable garden done, he got his son to dig it.[55]
[55]T44
78He drives very short distances and does the shopping. A couple of times a week, he goes out to get the bread and milk, but if he needs bigger shopping, his son does it.
79He meets up with some elderly friends and they have a coffee locally for an hour or two, and then he goes home. When he has a lot of pain, he does not go, because he does not want to go out and moan and groan and tell his friends that he is in pain.[56]
[56]T42
80He does drive, but only locally. He goes to the plaza which is about a kilometre away from home.[57]
[57]T31
81He enjoyed working, as it kept him busy and occupied his retirement years. He was more than capable of working 25 hours a fortnight and it got him out of the house. Post-incident, he has not been able to return to any form of employment and remains frustrated by his injuries and ability to use his right shoulder and arm the way he would like to.
82He disagreed that he was coming to the end of his working life in January 2017. He loved his job, it was close to home, his car did not even have time to warm up by the time he got there. The “other boys” who worked with him loved him and he loved them. The time would finish and then it would be time for him to go home, and he did not even realise the time had gone.[58] He never had any thought of stopping. Had he not had this injury, he would have still been there today:
“I don’t want to be in the house, stuck in the house. I’m a nervous kind of person. I go there - I get out of the house and I would talk to people. That’s my makeup, that’s what I’m like.”
[58]T43
83Now, unfortunately, his shoulder and arm has made him not able to do all that. He goes out, but does so cautiously and, if he is in pain, he does not go out.[59]
[59]        T42
Incident reports
84In an incident report dated 1 May 2017, it was noted:
“24/3
Bin in dumpster – sacks into the bins
whacked his elbow on the bins.
Cortisone injection into the elbow. 1 week off.
Not normal doctor.
…
Doctor advised to put through W/Cover.
…
W/Cover claim form to be sent out.”

85An email from the employer to Reports Care on 1 May 2017 set out the date of incident was 19 April 2017 at BOC Preston. It was noted:
“IPP completed his duties for the day and reported elbow pain to Gerald. IP has previously reported this incident HSEQ140195. IP went to a doctor after the original report and he was informed there is an issue with a tendon in his right elbow. IP had a week off doctor’s advice. IP will again present to the doctor. Jim’s first language is Greek but [he] does speak English.”
86An ISS claims and injuries management department new claim checklist dated 9 May 2017, described an incident report was received and further investigation was required. A WorkCover Certificate was provided.
Claim documents
87While he signed the Claim Form on 12 May 2017, the plaintiff did not complete it. He went to Dr Haralambakis, who would have put him on compensation. He did not know what the doctor wrote.[60]
[60]T38
88In that form, the date of injury was 24 January 2017 at 9.30am. The date of stopping work was 19 April 2017. The incident was reported on 24 January 2017 to Dennis (supervisor at BOC Gas & Gear). The ISS Facility Services supervisor was informed on 19 April 2017 that the pain in his right shoulder had become too severe and he could not work.
89In describing what happened and how the plaintiff was injured, it was noted:
“GRADUALLY WORSENING [RIGHT] SHOULDER MORE THAN [LEFT] SHOULDER PAIN OVER SEVERAL MONTHS DUE TO REPEATED LIFTING AT WORK ON 24/1/17, I LIFTED SEVERAL BAGS WEIGHING APPROXIMATELY 30 KG EACH AND TOSSED THEM INTO A LARGE SKIP. SINCE THEN THE PAIN IN [RIGHT] SHOULDER HAS BEEN SEVERE.”
90It was noted when injured, the plaintiff was picking up large waste bags weighing about 30 kilograms and throwing them into a skip.
91When asked whether he had previously had another condition or personal injury relating to that condition, the answer was “NO”, however he had occasional pain in both shoulders, but these had settled spontaneously and have never been as severe as this time.
92At that stage, the plaintiff was working 12.5 hours a week, earning $21.75 an hour.
93The Employer Injury Claim Report completed on 19 May 2017, set out the injury was reported on 19 April 2017. It was an injury to the right shoulder lifting 30-kilogram bags and tipping them into a skip at BOC in Preston. The injury occurred on 24 January 2017 at 9.30am.
94By letter dated 26 June 2017, the plaintiff was advised by the insurer that his claim relating to injury on 24 January 2017 had been accepted for weekly payments and medical and like expenses. By letter dated 13 August 2017, the insurer advised that the plaintiff’s request for a right shoulder injection was approved.
95The plaintiff lodged a Claim for Impairment Benefits on 27 June 2019 for his right shoulder and neck.
96That form set out that the injury was first noticed on 21 January 2017, having occurred over four years, throwing heavy rubbish bags over his shoulder and into a large metal skip bin.
97By letter dated 13 July 2020, the insurer advised liability was accepted for the right shoulder and aggravation of pre-existing age-related degenerative changes in the cervical spine, based on an examination by Mr Timothy Gale on 23 June 2020.[61]
[61] Injury date 24 January 2017

The Plaintiff’s medical evidence
Treaters – notes
Dr Vaiopoulos – Preston
98The plaintiff saw Dr Vaiopoulos on 25 January 2017. The history was:
“right elbow injury
as he was throwing some rubbish on a high bin
has some bruising over medial epicondyle
??tendon tear
…
Actions:
Radiology Order , MSK
Off Work Certificate
… .”

Dr Haralambakis – Fairfield
99On 19 April 2017, the plaintiff attended Dr Haralambakis. The reason for the contact was right rotator cuff syndrome. An x-ray and ultrasound of the right shoulder was requested, and a medical certificate printed and Tramal prescribed.
100Significant worsening right shoulder pain, weakness and reduced range of movement was reported. A medical certificate for part-time cleaning work was provided from 19 April to 26 April 2017.
101On 26 April 2017, the plaintiff presented for the results of a recent right shoulder x-ray and ultrasound. The findings were consistent with the plaintiff’s clinical picture and severity of his symptoms. It was noted the plaintiff will need to try and rest his right hand and upper limb as much as possible and will probably need physiotherapy, and possibly a Depot steroid injection and specialist referral if not improving.
102The plaintiff attributed his symptoms to his part-time cleaning of offices et cetera, which he had been doing for many years, and had flare ups in his right shoulder before, which settled either spontaneously or with treatment; however, the current symptoms had been building and getting worse for some time and are consistent with the work duties.
103On 1 May 2017, Dr Haralambakis noted the plaintiff had tried to return to work that day, but was not able to due to severe right shoulder pain. A letter was written to the plaintiff’s supervisor explaining the current situation and the need for the plaintiff to put in a WorkCover claim. A WorkCover certificate was written stating the plaintiff was unfit for all work 4/52 from that day.
104On 6 May 2017, the plaintiff had a Depot Medrol injection to the right shoulder. At the next visit, on 12 May 2017, he advised, after that injection, he felt better for about two to three days, but after that the pain came back as before.
Reports
105Dr Haralambakis initially provided a report to the employer on 1 May 2017. He then advised the plaintiff was suffering from severe right shoulder pain and associated weakness with significantly reduced range of movement.
106The plaintiff told him he had been responsible for cleaning kitchen cooking facilities and that involved lifting and emptying heavy bins and other containers. The plaintiff had complained to him in the past of right shoulder pain secondary to his work duties and investigations in the past had shown changes to the right rotator cuff tendons consistent with overuse and strain from work.
107On 24 March 2017, the plaintiff was performing his duties and had to ask one of his supervisors, Dennis, to help him empty multiple heavy bags, weighing approximately 20 to 30 kilograms. The plaintiff told him he had injured his right shoulder and upper arm, and since then, he had continued to be in severe pain and saw a different doctor, who ordered an x-ray and ultrasound, and gave him a week off.
108Unfortunately, that time was not enough rest and pain had continued. The plaintiff tried to persevere with work as much as he could, and had not come to the point where he was unable to do duties as a result of his pain. He gave the plaintiff a WorkCover Certificate.
109In a subsequent report of 12 May 2017, Dr Haralambakis advised he had made an error and that the incident injury was on 24 January 2017.
110He advised of the results of an ultrasound on 21 April 2017. He administered a steroid injection in the plaintiff’s right shoulder on 5 May 2017; however, there had not been any sustained improvement and the plaintiff remained unfit for work.
111Dr Haralambakis completed a medical practitioner’s questionnaire new claim on 17 July 2017. He noted the plaintiff was working as a cleaner at BOC Preston on 24 January 2017. He was lifting a 30-kilogram bag of rubbish about shoulder height in order to throw it into a rubbish skip. There were thirty bags, but the plaintiff developed worsening pain in his right shoulder, and was not able to finish throwing them into the bin. He took a week off and then returned to work, but the pain became progressively worse.
112Dr Haralambakis considered that the new injuries were not present or seen on the October 2015 ultrasound and, in fact, the calcifications seen in that 2015 ultrasound were not seen in the most recent imaging, and therefore would have most probably resolved prior to 24 January 2017.
Dr Pantazopoulos – chiropractor – Fairfield
113Dr Pantazopoulos has provided a number of reports from 13 May 2019.
114On that date, he diagnosed severe rotator cuff tendinopathy with partial thickness tearing and splitting of the supraspinatus, the anterior fibres of infraspinatus and subscapularis with tendon irregularity and fraying, evulsion of the longheaded biceps tendon away from the labrum and superior glenoid with retraction into the bicipital groove, subacromial/subdeltoid bursitis, AC joint arthropathy and glenohumeral joint effusion and mild synovitis.
115He also thought the plaintiff had significant cervical spine pathology.
116In his view, there appeared to be a clear relationship between the shoulder injury and employment and a likely association of the neck injury and employment. He had been providing the plaintiff with certificates of capacity at four-week intervals since August 2019. The plaintiff attempted to self-manage by using Voltaren cream topically and oral medications, Panadol Osteo and Prodeinextra.
117The plaintiff had reported being significantly restricted in his leisure activities which predominantly involved gardening. He had been unable to attend to his vegetable garden and flowering plants since the injury, other than watering the plants. He also reported undertaking walking most days for thirty to forty minutes, however, whenever his arm and/or neck were aggravated, he avoided that activity as the pain intensified.
118Treatment focused on the plaintiff’s neck and shoulder injuries. However, when these injuries were significantly aggravated, treatment frequency increased for short periods.
119The strength and functionality of the plaintiff’s right arm had been considerably affected.
120In spite of his advanced age and underlying health problems, the plaintiff indicated he enjoyed and looked forward to his part-time cleaning, and generally did not find the work demanding. Consequently, he was able to continue in that role for approximately twelve years without any problems until his injury. On several occasions, the plaintiff had told him if not for the injury, he would still have been able to continue his work.
Mr Pullen – orthopaedic surgeon
121Mr Pullen wrote to Dr Haralambakis in July 2017, thanking him for the referral, noting the shoulder injury on 21 January 2017.
122On examination, there was restriction in both active and passive motion of the right shoulder and the plaintiff had considerable pain. He had a possible impingement sign and had a painful arc.
123The MRI scan showed a very significant rotator cuff tendinopathy and tearing. There appeared to be an avulsion of his longheaded biceps.
124Mr Pullen discussed non-operative and operative treatment. Given the plaintiff’s age, he recommended a trial of non-operative treatment and had referred him for physiotherapy, and also provided him with a referral for a further cortisone injection. He suggested, if physiotherapy caused him increased pain, then a cortisone injection may aid the plaintiff’s rehabilitation. He offered a further examination if the plaintiff had ongoing difficulties and then revisit the possibility of shoulder arthroscopy.
Investigations
125In October 2015, Dr Haralambakis organised an x-ray of the plaintiff’s right shoulder and elbow.
126It was reported that there was worsening right rotator cuff syndrome. The acromioclavicular joint showed minor degenerative change. No rotator cuff calcification or bony injury, or bony destructive lesion was seen.
127The ultrasound showed medial epicondylitis, triceps tendinopathy and a borderline joint effusion.
128It was reported the ultrasound of the right shoulder showed supraspinatus and long head of biceps calcific tendinopathy. No rotator cuff tendon tear was identified.
129Dr Haralambakis organised an ultrasound and x-ray of the right shoulder on 21 April 2017. The radiologist noted comparison was made to the previous study dated 13 October 2015.
130The clinical notes indicated worsening pain, weakness and decreased range of movement of the right shoulder, clinically consistent with rotator cuff syndrome.
131It was reported the ultrasound showed there was degenerative change at the acromioclavicular joint. There was a tear of the supraspinatus tendon, likely full thickness, measuring 25 millimetres. Subscapularis and infraspinatus tendons were normal. The longheaded biceps tendon was normal, however, there was a large volume of complex fluid in its sheath. There was gross thickening of the subacromial subdeltoid bursa, with complex fluid.
132On x-ray, the glenohumeral joint space was relatively preserved. There was a tiny ossified focus at the inferior aspect of the joint. There was severe degenerative change at the acromioclavicular joint.
133Following an MRI scan of the right shoulder organised by Dr Haralambakis on 3 July 2017, it was reported there were multiple findings, including severe rotator cuff tendinopathy with partial thickness tearing and splitting of much of the supraspinatus, the anterior fibres of the infraspinatus and subscapularis. The tendons were quite irregular and frayed. There was no tendon retraction.
134There was also subacromial/subdeltoid bursitis, evidence of avulsion of the longhead of biceps tendon away from the labrum and superior glenoid with retraction into the bicipital groove, AC joint arthropathy and a glenohumeral joint effusion and mild synovitis.
135In December 2018, Dr Sevdalis at Fairfield organised an x-ray and ultrasound of both shoulders and an MRI scan of the cervical spine.
136It was reported there was mild AC joint and glenohumeral joint degenerative change with supraspinatus tendinopathy in the right shoulder, but no rotator cuff tear and mild bursitis. Restricted movements.
137In the cervical spine, there was multilevel disc and facet joint OA. There was also generalised moderate central canal narrowing between C4 and C7. There was prominent left paracentral disc protrusion at C4-5 which caused severe left sided central canal narrowing and compression of the cord and mild increased cord signal. There was multilevel bilateral foraminal stenosis with nerve root compression at several levels on both sides, including on the left at C2-3 and bilaterally at C4-5 and C6-7.

Medico-legal evidence
Mr Ash Moaveni – orthopaedic surgeon
138The plaintiff was examined by Mr Moaveni in October 2021. He was provided with all medical reports, including Mr Chehata’s October 2021 report. He did not have access to the medical records referred to by Mr Chehata.
139Mr Moaveni noted the plaintiff saw his GP in 2015 in regard to right elbow and shoulder problems and was referred for an x-ray and prescribed pain management. The symptoms settled over a period of time and the plaintiff stated he did not have any ongoing problems.
140The plaintiff told him of the incident on or about 21 January 2017.
141On examination, the plaintiff reported pain over the superior aspect of the glenohumeral joint extending to the elbow down the lateral aspect of the upper arm. The pain recently extended into the hand and fingers, causing problems with gripping in the morning. Shoulder pain was constant, but varied in severity, and the plaintiff was cautious with certain movements which aggravated the pain.
142The plaintiff reported moderate difficulty in performing self-care and personal hygiene, including showering, dressing, eating and eliminating. He noticed modest difficulty in managing shopping duties and household chores.
143The plaintiff also reported difficulty elevating his right arm above shoulder height and experienced a pulling sensation and pain when he did so. His right shoulder felt weaker than the left and he continued to experience numbness and tingling in his right arm.
144The plaintiff reported notable difficulty in gardening and/or lawn maintenance, often requiring help from his son. He could do light planting but, before was able to dig independently. He had a driving tolerance of less than fifteen minutes and generally limited to five minutes locally. He had difficulty sleeping and his sleep pattern was disturbed if he rolled onto his right. He reported avoiding attending social gatherings such as church and crowded cultural sporting events for fear of being bumped and aggravating his shoulder.
145Mr Moaveni thought the plaintiff was a clear and straightforward historian and was cooperative with the physical examination.
146The diagnosis included degenerative changes in the right shoulder which were significantly aggravated by the work injury. There was evidence of full rotator cuff tendinopathy and partial thickness tear bursitis and AC joint arthritis. There was also evidence of cervical spine spondylosis significantly exacerbated by the work injury.
147As a consequence of his physical injury and impairment to the plaintiff’s right shoulder alone, he is likely to be restricted in relation to pushing, pulling, lifting, repetitive activity, overhead activity, gripping, holding, carrying and use of tools. There are also a range of restrictions due to his cervical spine injury.
148In relation to the right shoulder alone, the plaintiff is likely to be restricted in relation to social, domestic and recreational activities for the foreseeable future. This is also the case with his spine.
149The prognosis in relation to the plaintiff’s right shoulder injury is poor in view of his age, as well as the degree of the pathology on the imaging. His prognosis as to a cervical injury is also poor.

The Defendant’s evidence
Lay evidence
Peter Wood (Insurer – Allianz)
150Mr Wood swore an affidavit on 5 November 2021, exhibiting the Austin note.
151The insurer was not in possession of that note at the time the impairment benefit claim was accepted and having seen the note, he now believed the insurer may have made a different decision about the compensability of the plaintiff’s right shoulder and neck if that material had been available at the time the decision was made.
152The Austin note set out, under “History of presenting complaint” on 21 January:
“Pt p/w R shoulder & biceps muscle strain.
Injury occurred either Tues or Wed night when he was lifting some boxes at home over his shoulder & had acute pain in R biceps. Son had to put boxes away.
He has still been able to do his part-time job in a factory as a cleaner past 2 days.
CIO more pain overnight & unable to lift R arm up.
…”

153Panadol Osteo and OxyNorm were prescribed, and the plaintiff was advised to see his LMO if not improving.
Vanessa Bills – employer’s injury assist manager
154Ms Bills swore her first affidavit on 24 November 2021, exhibiting a number of the plaintiff’s pay records.
155As far as she was aware, the plaintiff never made any complaints about his duties and was always able to perform them without restriction. His wage records of 12 January 2017 until the week ending 30 April 2017 set out he continued to perform his normal duties without any indication he was having any difficulty.
156The plaintiff notified Patrick Dalton, regional client services manager, of a sore arm and right shoulder injury on 19 April 2017. The plaintiff advised he was working normally without injury and was unsure how his arm became sore.
157The plaintiff notified Gerald Mangion, former maintenance coordinator, of a right elbow injury on 1 May 2017. He advised he completed his duties for the day and reported right elbow pain.
158Ms Bills referred to the contents of the Claim Form dated 12 May 2017.
159The plaintiff ceased duties with the employer on or about 14 May 2017 and was terminated from his employment on 10 December 2019.
160Ms Bills swore a supplementary affidavit, having been provided with the plaintiff’s most recent affidavit.
161To the best of her knowledge and belief, there was no employee of the employer named Dennis who was placed as a supervisor at BOC Limited in Preston.
The Defendant’s medical evidence
162Professor Russell Buchanan reported to the plaintiff’s GP at Fairfield in early 2004.
163He advised the plaintiff was reviewed in the Rheumatology Outpatients at Austin Health in mid 2003 with right-sided shoulder and left elbow pain. The right shoulder did well with subacromial injection and subsequent physiotherapy for shoulder strengthening.
Medico-legal evidence
Dr Graeme Doig – general orthopaedic and trauma
164The plaintiff was examined by Dr Doig on 21 June 2017.
165The plaintiff gave a history of the incident injury on 21 January 2017.
166On examination, the plaintiff complained of ongoing pain and weakness in the right shoulder with an inability to lift his arm above his head. He also had pain in the distribution of the biceps muscle.
167The plaintiff was taking occasional Panadeine Forte and anti-inflammatory medication, including Celebrex and Naproxen. He was yet to have any physiotherapy. An injection on 5 May 2017 helped for two days and was likely the result of the local anaesthetic.
168On examination, the plaintiff was non tender at the cervical spine, with a good range of motion. He was tender over the right anterolateral rotator cuff, however, with only 90 degrees of active abduction and forward flexion. He could passively lift the arm to 150 degrees. Rotation was almost full and essentially limited by pain at the extremes. There was no focal neurological deficit of the upper arms.
169The diagnosis was of a rotator cuff tear at the dominant right shoulder. That condition may have been pre-existing in view of the plaintiff’s age and previous work experience; however, he was previously asymptomatic, and one had to assume the rotator cuff tear had been, if not caused by, then significantly aggravated by, the incident, unless there was evidence of the contrary.
170There was no mention of any shoulder problems before the incident.
171Dr Doig thought this appeared to be a new injury. He considered the plaintiff not fit for pre-injury duties. An initial period of intensive physiotherapy would be appropriate and MRI scanning would also clarify the anatomy and extent of rotator cuff tear.
172The main factor surrounding the claimed injury was corroboration of the plaintiff’s history with work colleagues and treating practitioners.
Dr John Lange – occupational physician
173Dr Lange first examined the plaintiff in September 2017.
174The plaintiff gave a history of the incident injury on 21 January 2017.
175Dr Lange noted the plaintiff had no past history of elbow or shoulder problems. He had a past history of asthma, sinusitis and wore hearing aids. A benign tumour was treated in 1999.
176The plaintiff had right shoulder pain which he rated between 5-10 out of 10, which had not improved since January 2017. Any shoulder movements caused pain.
177On examination, there was 70 per cent normal range of cervical movement. There was no tenderness on shoulder movement and no wasting of the shoulder girdle musculature or the arm, however, there was only 30 per cent normal range of movement. Passive movement was 50 per cent.
178The plaintiff complained of marked pain on turning his arm from the flexed position back to the dependent position. Right elbow examination showed a full range of movement with no tenderness.
179The 2015 investigations of the right elbow and shoulder predated the incident by eighteen months. The clinical notes on the request form dated 13 October 2015 recorded “medial and lateral epicondylitis and worsening right rotator cuff syndrome”.
180The July 2017 MRI scan of the right shoulder revealed extensive degenerative changes in the right shoulder joint, including tendinopathy of the right rotator cuff, subacromial and subdeltoid bursitis, avulsion of long head of biceps.
181The plaintiff had degenerative changes in the right shoulder which were exacerbated by the incident, but his condition had not resolved and continued to be related to his employment. He could not return to his pre-injury duties and hours.
182On review in February 2018, the plaintiff advised his condition had not altered.
183Examination of the right shoulder revealed slight tenderness on palpation over the anterior humerus. There was no focal wasting of the shoulder girdle musculature, but there did appear to be some generalised wasting of the deltoid of both shoulders. Right shoulder movement was only 40 per cent normal. There was 70 per cent normal range of movement of the cervical spine.
184Dr Lange concluded the plaintiff had arthritis and tendinitis of the right shoulder, along with bursitis. His right shoulder condition had not resolved and continued to be related to his work injury. He did not have a current work capacity.
Dr Jonathan Burdon – respiratory and sleep disorders physician
185Dr Burdon examined the plaintiff in October 2018 to assess his respiratory complaints. He noted, as a result of the stress of the plaintiff’s injury, together with the side effects of some medication used, for example codeine phosphate, the plaintiff’s asthma had become more difficult to control. He thought an improvement in asthma control could be obtained once codeine containing pharmaceuticals had been withdrawn.
Mr Timothy Gale – general and trauma surgeon
186Mr Gale examined the plaintiff for the purposes of an AMA Assessment in June 2020. He noted the plaintiff suffered injury in the incident in January 2017.
187At the present time, the plaintiff had ongoing symptoms, particularly relating to his right shoulder girdle with discomfort on extremes of movement and restricted range of joint motion, particularly elevation using the hand above shoulder level. There was some discomfort in the neck.
188Inspection of the right shoulder girdle revealed no postural abnormality and no definite muscle wasting, and the biceps showed changes consistent with the tendon to the longhead of the biceps not being intact. The acromioclavicular joint was not specifically palpably abnormal or tender. No passive movements were carried out, but active movement testing measured on a digital readout goniometer revealed flexion 120 degrees, extension 50, abduction 110, adduction and external rotation 40 and internal rotation 70 degrees.
189Mr Gale had seen the films and radiologist’s report of the April 2017 investigations, the ultrasound report describing “a possible full thickness tear of the supraspinatus tendon, and the tendon to the long head of biceps appeared normal. Degenerative change at the acromioclavicular joint was noted.” The x-ray report described severe degenerative change at the acromioclavicular joint.
190Mr Gale had also seen films and a radiologist’s report of an MRI scan of the right shoulder dated July 2017 which concluded –
“Multiple findings including severe rotator cuff tendonopathy (sic) with a partial thickness tearing and splitting of much of supraspinatus, the anterior fibres of infraspinatus and subscapularis. The tendons are quite irregular and frayed, no tendon retraction. There is also subacromial bursitis and evidence of avulsion of the long head of biceps tendon away from the labrum and superior glenoid with retraction into the bicipital groove. AC joint arthropathy and a glenohumeral joint effusion and mild synovitis.”
191Mr Gale also considered the radiologist’s report of an x-ray and ultrasound of both shoulders dated December 2018, with the conclusion of “mild AC joint and glenohumeral joint degenerative changes with supraspinatus tendinopathy, but no rotator cuff tear, and mild bursitis. Restricted movements.” He had also seen the reports of the December 2018 cervical MRI scan.
192As a result of the incident, the plaintiff was likely to have suffered aggravation degenerative changes within the right shoulder girdle, with a background of recurring right shoulder symptoms over the preceding four years. He expected the plaintiff’s work as a canteen cleaner over a number of years had been a contribution to the ongoing symptoms through symptomatic aggravation and pre-existing age-related degenerative changes therein.
193It is possible the plaintiff had minor temporary symptoms in his neck following the incident, but an IME six months later indicated there were no ongoing clinical problems.
194The prognosis would be guarded in view of the degenerative changes seen in the right shoulder girdle aggravated by the plaintiff’s employment and, as a consequence, it was likely he will have long-term right shoulder symptoms of discomfort of variable severity and a reduced range of movement of variable degrees for the foreseeable future.
195The plaintiff’s capacity for work is compromised by his right shoulder symptoms but also, equally, by other medical comorbidities related to his age and general health, as would his participation in activities of daily living.
196The clinical presentation is consistent with the effects of the incident. A 5 per cent impairment was allowed in relation to the shoulder.
Mr Ash Chehata – shoulder, elbow and wrist surgeon
197Mr Chehata examined the plaintiff on 10 October 2021.
198Mr Chehata noted the plaintiff had a very relevant background history. He also had a clear background history of suffering a distal bicep rupture in May 2002, which was clearly evident on MRI scan, and although commented on ultrasound of a partial tear, often the distal bicep ruptures. He had suffered right elbow and right shoulder pain in both 2003 and 2004, as recorded by his GP and rheumatologist. He had seen his GP numerous times prior to the work as a cleaner in 2013, with numerous documentation from as early as 2009, with ongoing and chronic neck symptoms radiating to his upper back, as well as into both shoulders, with bilateral shoulder pain on 9 January 2010, with x-rays confirming widespread calcification in both shoulders, with marked degenerative change in the AC joints.
199This was further documented with x-rays in February 2010 and an examination by Professor Myron Goldwasser. Only a few months before starting with employer, the plaintiff began to develop right shoulder pain and tendinitis, as recorded on 7 April 2013.
200Mr Chehata noted at the ripe old age of seventy-one, the plaintiff began to develop right shoulder pain, as he deposed to, seeing his GP, and ultimately having a cortisone injection in October 2015.
201Mr Chehata did note, however, there was a relatively quiet period until January 2017, when the injury occurred.
202Mr Chehata noted the Austin Hospital report, but made no mention of the injury happening at home. He then noted subsequent treatment.
203Mr Chehata thought the current condition of the plaintiff’s right upper limb was constitutionally degenerate, all consistent with a seventy-seven-year-old man.
204The likely condition of the plaintiff’s right upper limb prior to the claimed incident was clearly one that had been slowly degenerating from as early as 2002. He was already carrying multiple injury and chronic disease patterns, with calcification in both shoulders from as early as 2010, coupled with a torn distal bicep in 2002, and multiple episodes of a degenerative rotator cuff, for which he had an injection in 2015.
205There were clearly pre-existing physical conditions that gave a far greater likelihood of probability to explain the overall symptoms.
206The plaintiff’s likely inability to do two-and-a-half hours of work a day at the age of sixty-nine, and then doing it until seventy-one, simply highlighted the inability of the likelihood of an elderly gentleman performing unskilled manual work.
207From Mr Chehata’s experience, the plaintiff’s conditions were clearly all related more to declining age rather than anything else.
208The significance of the pathology was clear, noting there was no acute pathology whatsoever, with only degenerative change present in both the cervical and rotator cuff, with no pathology debris or any suggestion of acute pathology. The prognosis of the plaintiff’s upper limb condition is one of constitutional degenerative change.
209The findings from as early as 2002 all belie an idea of a constitutional and degenerative upper limb, with an already torn distal bicep with degenerative and recurrent bilateral shoulder pain and neck symptoms.
210The plaintiff’s current treatment will be more related to an overall general holistic management plan, which has very little to do with any work-related injuries and is more related to an elderly gentleman of seventy-seven who would be expected, with age, to be slowing down and no longer able to perform unskilled manual work.
211Mr Chehata did not believe the claimed incident had any correlation whatsoever to employment. He did not believe there was any acute injury indicative on imaging, nor on the overall management plan, which would have been clearly evident on presentation to the Austin.
212The diagnosis of the plaintiff’s likely condition is that of overall ageing and a simple declining of age with constitutional changes, as would be expected with his age.

Investigations
213Following a right elbow x-ray in May 2002, it was reported there was no bone or joint injury and no joint effusion.
214There was an MRI scan of the right elbow on 28 May 2002. It was reported there was a rupture of the lacertus fibrosus and distended bicipital radial bursa.
215There was an ultrasound of the right forearm/elbow on 28 May 2002, following which it was reported there was a small partial tear involving the biceps tendon at its insertion. There was extensive soft tissue oedema haemorrhage anteriorly.
216Following an ultrasound of the right shoulder in November 2010, it was reported there were focal partial thickness tears of the biceps tendon and supraspinatus and biceps tendinopathy.

217On 25 January 2017, there was an ultrasound of the right elbow, following which it was reported:
“Joint space fluid and there is a tear of lateral collateral ligament present. Tendinopathic changes of the common extensor and common flexor origins are demonstrated. Calcification is demonstrated at the insertion of the common extensor tendon.”

Overview
Causation
218The defendant’s case was that any right upper limb injury occurred at home, as set out in the Austin note. Further, it was submitted the date of any incident remains a “complete mystery”, with the plaintiff now saying it may have happened on 17 or 18 January 2017, backdating it from the Austin attendance on the 21^st of that month.
219The impairment benefit Claim Form sets out the date as 21 January 2017, the Claim Form refers to 24 January 2017, as does Dr Haralambakis. The Incident Report mentions yet another date: 19 April 2017.[62]
[62]T52
220It was also submitted, the plaintiff’s confusion about when he took time off work after the incident also raised doubts as to whether there was in fact an incident at work, making it more likely he was injured at home.[63]
[63]T53
221Counsel for the plaintiff, whilst conceding there was confusion about the date of the injury, submitted the incident did happen at work on a date in January 2017.
222Counsel relied on the contemporaneous note of the visit with Dr Vaiopoulos on 25 January 2017. Although that note was brief, it mentioned injury throwing some rubbish on a high bin. It was submitted this account of what happened at work was made at a time when he was not considering a WorkCover claim, with no motivation for him to tell anyone anything other than the truth.[64]
[64]T60
223Again, while there was some confusion about what time the plaintiff had off work after the incident, and when it seems he was given some time off by Dr Vaiopoulos on 25 January 2017, when he certified him unfit for a week. I accept the plaintiff had time off then, despite Ms Bills deposing the records indicated the plaintiff did not have any time off work and in fact ceased work on 14 May 2017.
224Also, it was apparent that the plaintiff had worsening symptoms, as was noted on 19 April 2017 in one of the defendant’s documents, which was the date of the complaint rather than the incident itself.[65]
[65]T61
225At that early stage, the plaintiff was prescribed Tramal and given certificates by Dr Haralambakis.[66]
[66]T63
226Also supportive of an incident at work was the Incident Report of 1 May 2017 which set out – “Bin in dumpster – sacks into the bins. Whacked his elbow on the bins.”[67]
[67]T62
227There is also an incident report dated 1 May 2017, which refers to “bin in dumpster”.[68]
[68]T62
228The history recorded in Dr Haralambakis’ report and also his medical practitioner questionnaire is significant, because it predates the plaintiff’s first affidavit and is consistent with his account of the incident injury.[69]
[69]T66
229It was submitted the plaintiff was not interested in pursuing compensation until it was suggested by Dr Haralambakis later on.[70]
[70]T62
230The employer has been aware from at least the time of the Claim Form of 12 May 2017 of Dennis’ involvement. The Claim Form also sets out gradual worsening of the right shoulder.[71] On 26 June 2017, Allianz accepted the claim.
[71]T64
231Taking into account all the evidence, I am satisfied that the plaintiff suffered injury to his right upper limb while emptying bins above shoulder height into a skip at work on a date in January 2017.
232While there is some confusion as to the dates, I am satisfied that this injury occurred in the week before the plaintiff’s attendance at the Austin Hospital on 21 January 2017.
233While the note of that attendance set out that the plaintiff suffered injury at home in the preceding week, I accept his explanation that this note is inaccurate. There is no mention in any other document of the plaintiff having hurt his shoulder at home throwing bins. He did not have high bins at home. He attended the Austin alone without the assistance of an interpreter, and, in my view, the author of the note incorrectly recorded the plaintiff’s account of his injury.
234Although it is unusual why the plaintiff could not recall his attendance at the Austin until provided with the records, I accept the injury happened at work in the manner he described because:
(i)    the Austin note, while incorrect, does mention high bins and the plaintiff’s son needing to the finish the job. There were no bins at home and Dennis finished the job.
(ii)   The contemporaneous history given to Dr Vaiopoulos on 25 January 2017, some four days after the Austin Hospital attendance, is consistent with the plaintiff’s current account of throwing rubbish into a high bin, and having been told at the Austin to see his GP.
(iii)   Significantly, the plaintiff named Dennis, an employee of BOC at the Preston site, as a witness to the incident, and his involvement with him in it and completing the job as early as May 2017 in the Claim Form. While Ms Bills, on behalf of the defendant, deposed that Dennis was not an employee of the employer, the plaintiff has never said this was the case, and the situation was that Dennis was employed by BOC at Preston.
(iv)     While there are a number of dates given for the incident, there is a consistency in the account of the events occurring at work, as deposed to by the plaintiff and recorded by Dr Haralambakis and others.
(v)   At an early stage, the plaintiff was not motivated to bring a workers’ compensation claim. That may explain why he may not have given more detail of the incident circumstances at the earlier examinations.
(vi)     Dr Haralambakis thought there was a work connection, suggesting in May 2017 that the plaintiff bring a compensation claim.
(vii)    the Incident Report dated 1 May 2017 referred to “bin in dumpster”.
(viii)   It seems the plaintiff did have time off work – initially for a week, and then his symptoms worsened until 19 April.

Consequences
235In this case, where there is a pre-existing right shoulder/elbow condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the subject incident is serious and permanent.
236In Petkovski v Galletti,[72] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”

[72] [1994] 1 VR 436

237It is apparent that the plaintiff had treatment for right upper limb problems from as early as 2002. These were summarised in some detail in Mr Chehata’s report, with various treatments from 2002-2004, 2009-2010, and a flare-up in 2015.[73]
[73]T53
238However, Mr Chehata noted from the time of the right shoulder injection in October 2015, after which Dr Haralambakis reported the shoulder settled, there was a relatively quiet period until January 2017, when the incident injury occurred.
239During that time, the plaintiff was able to work part time with the employer without any restriction and required no time off work. He was able to enjoy gardening and engage without difficulty in his social and domestic activities.
240While most examiners did not have a full history of this pre-incident treatment, in the end, their lack of knowledge is not as important given my findings as to the plaintiff’s level of functioning as at the incident date.
241However, post incident, this situation has changed significantly.
242The scans on 21 April 2017 revealed a new tear,[74] which Mr Pullen described as a very significant rotator cuff tendinopathy and tearing.[75]
[74]T59
[75]T68
243While other examiners commented specifically on this new finding, Mr Chehata not only ignored it but reported there was no acute pathology whatsoever.[76]
[76]T55
244I reject Mr Chehata’s view that the plaintiff’s condition is constitutionally degenerate and unrelated to work given the absence of any analysis by him of the new finding of a tear, which all other examiners accept is related to the incident. I also do not think, as he did, that the plaintiff had a very relevant background history.
245I accept Mr Pullen’s view, one shared by all examiners save for Mr Chehata, that there was new pathology as a result of the incident injury. As a number of examiners have concluded, the diagnosis was of a rotator cuff tear of the dominant right shoulder. Further, I accept the incident injury continues to contribute to the plaintiff’s current condition as most these examiners opined.
246As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[77] “The evidentiary basis of the pain assessment will ordinarily comprise the following: (a) what the plaintiff says about the pain (both in court and to doctors); … .”
[77](supra) at paragraph [11]
247I accept the plaintiff continues to suffer from constant right shoulder pain which at times is very debilitating, to the point where he describes it driving him crazy.[78]
[78]        Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Stijepic v One Force Group Aust Pty Ltd & Anor          [2009] VSCA 181
248Shoulder movement is restricted and shoulder pain radiates into his neck. He has difficulty elevating his arm above shoulder height without experiencing a pulling sensation and pain.
249His right arm feels weaker than the left, and he continues to experience numbness and tingling into the right arm and a feeling like the right arm is foreign to his body.
250Since the incident, he has undergone cortisone injections into his right shoulder, had physiotherapy, and more recently, chiropractic treatment. Although surgery was considered, given his age and heart, a more conservative approach was adopted.
251He requires ongoing painkilling medication but is unable to take Panadeine Forte on a regular basis, because it affects his asthma, as Dr Burdon confirmed. He also takes a painkiller ‘extra protein.’
252As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[79]
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[80]
[79](2007) 17 VR 592
[80]        (ibid) at paragraph [199]
253As counsel for the plaintiff submitted, the main consequence of the plaintiff’s right upper limb impairment is his inability to continue part-time work. While he was only working 2.5 hours a day, I accept that he would have worked after 2017 as he enjoyed the job, it gave him something to do, and gave him social interaction which he enjoyed.
254The plaintiff’s eagerness to continue work and the importance of part-time work to him at a late age, was confirmed by his chiropractor.
255Interference with work is a relevant pain and suffering consequence for this plaintiff.[81]
[81]     Haden Engineering Pty Ltd v McKinnon (supra); Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Stijepic v One Force Group Aust Pty Ltd & Anor (supra)
256As the right dominant arm has been injured, all aspects of his daily life have been affected.
257As a consequence of his right shoulder impairment, the plaintiff is likely to be restricted in relation to pushing, pulling, lifting, repetitive activity, overhead activity, gripping, holding, carrying and use of tools, as Mr Moaveni described.
258The plaintiff was a keen gardener before the incident and his activities in that regard have been severely restricted by his injury.
259There is also interference with his sleep when he rolls onto his right side.
260He also experiences shoulder pain when walking prolonged distances.
261While he still socialises with friends and is able to drive locally, he does not do so when he is in pain, and his interaction is limited at times.
262In these circumstances, I reject the submission that this seventy-eight-year-old plaintiff still maintains a very active and independent life.
263Taking into account all of the evidence, I am satisfied that, when compared to other cases in the range of possible impairments, the consequences for this plaintiff are “serious”.
264As there has been no improvement in his right upper limb condition over the last five years, despite cortisone injections, medication, and hands-on treatment, I am satisfied that his impairment is permanent.
265Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.

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[2022] VCC 528

27 April 2022